It is normally quite clear whether an employee has been dismissed or not. Either the employer will terminate the contract in writing, or a fixed-term contract will expire. Sometimes the employee may terminate the contract because ofthe employer's conduct, that is, constructive dismissal.
However, there can be times when the employee is not sure whether he or she has been properly dismissed, or not. This happened to an employee who had failed to pay back a loan to his employer. His boss in a fury swore at him and told him to get out.
An employment appeal tribunal decided that the man had not actually been dismissed, simply reprimanded.
Therefore, he could keep his job (Tanner v Kean. 1978). In this case the problem was differentiating reprimand from dismissal. It can also be as difficult to separate advice from dismissal.
For example, in Haseltine Lake v Dowler (1981), the employer advised Dowler that his long-term prospects with the firm were not good and indicated that he should look for another post.
It was intimated to him that he would, in fact, be dismissed sometime in the future if he remained with the firm. Dowler resigned and sought compensation for unfair dismissal. The appeal tribunal once again ruled that no dismissal had taken place since no date had been set.
However, in a school case, a cook was threatened with dismissal if she did not resign, since her job was nearly finished. Here the Court held that she had been dismissed. The judge pointed out that the cook had been told clearly that the job was finished and that she had an opportunity to resign before being sacked.
No other conclusion was possible other than that the employment was being terminated. She was being offered the opportunity to resign rather than receive notice of dismissal which would have been a perfectly proper alternative (East Sussex CC v Walker, 1972).
The legal test is whether a reasonable employee could have clearly understood that heshe had been dismissed and why.
Chris Lowe is honorary legal consultant to the Secondary Heads Association